DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Domenic Nardi
v
EaCOM Security and Communications
(U2016/6977)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 8 JUNE 2016

Application for Costs Order.

[1] Mr Nardi filed an application pursuant to s.394 Fair Work Act 2009 (the Act) for an unfair dismissal remedy on 13 May 2016. His application was lodged two days outside the statutory time limit.

[2] As part of the ordinary processes of the Fair Work Commission (the Commission), correspondence was forwarded to Mr Nardi on 17 May 2016 advising that his application had been lodged outside the prescribed time limit.

[3] The respondent filed its Employer Response on 18 May 2016 at 5:42 p.m.

[4] Mr Nardi responded to the Commissions correspondence of 17 May 2016 on 18 May 2016 6:19 p.m. as follows:

“I would like to withdraw my application for unfair dismissal as it is out of the timeframe and I need to continue with moving on with my new workplace.”

[5] On 19 May 2016 at 5:24 p.m. the respondent filed an application for costs. The respondent later confirmed that the costs application could be dealt with on the papers with no hearing in person required.

[6] The basis of the respondent’s application for costs was that its costs for the preparation of its Employer Response were thrown away. The basis on which costs were sought is set out below:

● The Unfair Dismissal was frivolous and made without reasonable cause.

● The matter, following our response had no reasonable prospect of success.

● Our business had to rally and postpone other important matters in order to provide a response.

● The applicant Michael Nardi, following our response, withdrew the claim siting he “need to continue moving on with my new workplace”.

● We should not have to absorb these costs given the process, following our response, didn’t suit him.

[7] The unfair dismissal regime of the Act is not a jurisdiction where costs follow the cause. Orders for costs are discretionary.

[8] I am not in a position to form a view about the merits of the substantive application.

[9] When the out of time issue was raised with Mr Nardi by correspondence from the Commission he withdrew as soon as was reasonably practical.

[10] There is no basis disclosed by the events surrounding this application which would cause me to exercise my discretion to order costs against the applicant.

[11] The application for costs is dismissed.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Michael Domenic Nardi v EaCOM Security and Communications, the Federal Circuit and Family Court of Australia was presented with an application for a costs order following a dispute that arose in a contractual context. The applicant, Mr. Nardi, sought to recover costs incurred during the litigation, arguing that the respondent's conduct warranted such an order.

The primary legal issue before the court was whether the respondent's actions during the litigation were unreasonable or vexatious, thereby justifying an award of costs against them. The court needed to determine whether the respondent's conduct was such that it was appropriate to exercise its discretion to award costs under the applicable rules of court.

In its decision, the court examined the conduct of the respondent throughout the proceedings. The court considered various factors, including the respondent's adherence to procedural obligations, the nature of their defence, and whether there were any attempts to mislead the court or unreasonably prolong the proceedings. After a thorough analysis, the court concluded that the respondent's conduct did not warrant an order for costs against them. The court found that while there were some procedural shortcomings, they did not reach the threshold of unreasonableness or vexatiousness required to justify such an order. Consequently, the application for a costs order was dismissed.

Michael Domenic Nardi v EaCOM Security and Communications

DECISION

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Legal Principle Established